Appeal From The Sheriff Appeal Court In The Petition Of The City Of Edinburgh Council Against Gd
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Menzies,Lord President |
| Neutral Citation | [2018] CSIH 52 |
| Date | 01 August 2018 |
| Docket Number | XA41/18 |
| Court | Court of Session |
| Published date | 01 August 2018 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2018] CSIH 52
XA41/18
Lord President
Lord Menzies
Lord Malcolm
OPINION OF LORD CARLOWAY, the LORD PRESIDENT
in the Appeal from the Sheriff Appeal Court
in the Petition of
THE CITY OF EDINBURGH COUNCIL
Petitioners and Respondents
against
GD
Respondent and Appellant
Petitioners and Respondents: JM Scott QC; City of Edinburgh Council
Respondent and Appellant: Aitken; Lisa Rae & Co
1 August 2018
Introduction
[1] This is an appeal against an interlocutor of the Sheriff Appeal Court dated 8 March
2018 which made a Permanence Order under section 80 of the Adoption and Children
(Scotland) Act 2007 in respect of a child, namely SD, now aged 4. The Order vested parental
rights and responsibilities, under sections 1 and 2 of the Children (Scotland) Act 1995, in the
petitioners and extinguished in large part the parental responsibilities and rights of the
child’s parents, including the respondent and appellant. The Order granted authority for
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the child to be adopted and revoked the pre-existing Compulsory Supervision Order. The
SAC’s interlocutor allowed an appeal against the interlocutor of the sheriff, dated
23 November 2017, refusing to grant the Permanence Order with authority to adopt.
[2] The appeal raises an issue about the proper construction of section 84(5)(c)(ii) of the
2007 Act, whereby, before making a Permanence Order, the court must be satisfied that “the
child’s residence [with a parent] is, or is likely to be, seriously detrimental to the welfare of
the child”. In particular, it raises a question about the time at which that test is to be
applied. The appeal also concerns, in that context, whether the appropriate inference of
serious detriment can be drawn when there has been a “non-accidental” injury to a child,
which has been caused by one or other of the parents, but it has not been established which
parent was responsible.
[3] The respondent, being the father of the child, changed his position at a late stage in
the process before the sheriff. Rather than seeking the return of the child to the care of
himself and the mother, with whom he continues to live, he sought to have the sole care of
the child on the basis that he would leave the company of the mother. He had, nevertheless,
remained (and remains) living with the mother. The appeal raises a further issue of
whether, notwithstanding the respondent’s stated willingness to care for the child on his
own, the Permanence Order should nevertheless be granted.
Legislation
[4] Part 2 of the Adoption and Children (Scotland) Act 2007 concerns the making of
Permanence Orders, vesting parental rights and responsibilities in a local authority and, in
certain cases, granting authority for the child to be adopted. Section 84 sets out the
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“conditions and considerations applicable to [the] making of” Permanence Orders. In
particular, it states:
“...
(3) The court may not make a Permanence Order in respect of a child unless it
considers that it would be better for the child that the Order be made than that it
should not be made.
...
(5) Before making a Permanence Order, the court must –
...
(c) be satisfied that –
(i) there is no person who has the right ... to have the child living
with the person or otherwise to regulate the child’s residence,
or
(ii) where there is such a person, the child’s residence with the
person is, or is likely to be, seriously detrimental to the welfare
of the child.”
[5] Where authority is sought for the child to be adopted, section 80(2)(c) states that
certain conditions, specified in section 83, must be met. One of these conditions (s 83(1)(d))
is that:
“the court considers that it would be better for the child if it were to grant authority
for the child to be adopted than if it were not to grant such authority”.
Facts
[6] The application for a Permanence Order was lodged in the sheriff court on
1 November 2016. The background was that SD, who is now aged 4, is the son of SA (the
original first respondent) and the respondent. SA, who had limited appearances in the
sheriff court process and did not appear in the appeal to the Sheriff Appeal Court, is the
mother of two other children, namely CX and CY, who are aged respectively 8 and 5. Both
of these children have been removed from SA’s care as a result of neglect and injury. They
have been adopted. The respondent is of Indian ethnic origin and is an overstayer, who is
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